Marijuana legalization trend impacts US employers

With US attitudes shifting on marijuana legalization, it was perhaps fitting that the recent Super Bowl featured teams from the two states that have legalized recreational marijuana use. Whether Seattle or Denver prevailed, stoners couldn’t lose.

But marijuana use remains illegal under federal law. So what does this state trend mean for US employers? That’s the subject of a new Hot Topic on XpertHR.

Meanwhile, Washington and Colorado may not stand alone for long. Voters in Alaska, Washington, D.C. are expected to consider legalization through ballot initiatives later this year and Arizona may do so as well.

A recent CNN poll showed that a majority of Americans, 55 percent, support legalization. This is up from 43 percent just two years ago. There is much less division when it comes to medical marijuana, which is now legal in 20 states plus the District of Columbia. At least 10 other states have pending legislation to legalize medicinal use of the drug to treat debilitating conditions.

Amidst the rapidly changing landscape, here are three takeaways for HR.

1) Drug-Free Policies Need Not Go Up in Smoke

Though many states have legalized medical marijuana, courts have not extended job protections to employees for its use. This has held true even in states that tend to have relatively broad employee rights like California, Oregon and Michigan. As a result, employers generally can fire or refuse to hire individuals who fail drug tests regardless of their medical marijuana registry status.

But in a few states, including Connecticut, employers may not refuse to hire a job applicant based on that person’s status as a “qualifying patient.” So checking one’s state law remains an absolute must.
Employers should proceed cautiously when managing employees with disabilities who use marijuana for medicinal purposes. Toward that end, employers that require drug tests should have a written policy in place that is:

  • well-publicized;
  • provided to all employees; and
  • clear enough for HR professionals to manage.

2) Recreational Use Does Not Mean Free Reign

Denver employment attorney Emily Hobbs-Wright, of Holland & Hart, told XpertHR in 2013 that even a recreational use state like Colorado does not require employers to permit or accommodate marijuana use in the workplace and that employers can continue to have policies restricting the drug’s use.

Hobbs-Wright notes that the Colorado law regulates marijuana much like alcohol. So just as an employer is free to prohibit employees from drinking beer in the break room, the same holds true with marijuana.

The law is less clear regarding off-duty conduct and random drug tests, but figures to evolve. After all, Colorado just opened retail marijuana shops on January 1, 2014. Legalization votes in Colorado and Washington occurred with ballot initiatives that were approved in November 2012.

3) What the Future Holds

Colorado shop owners reportedly sold $1 million worth of marijuana on the first day they could legally do so. Some have estimated legal sales will bring as much as $100 million in tax revenue to the state in 2014. Other states are surely taking note of that new-found revenue.

As for medical marijuana, it’s conceivable that a majority of states will have legalized its use to treat serious illnesses or conditions before the end of the year. And among these states, the laws will have some subtle—and not so subtle—differences. That makes this one trend employers cannot afford to ignore.

Massachusetts employment attorney Vanessa Gilbreth, of Proskauer Rose, said on an XpertHR podcast that she has seen some misconceptions regarding this issue. “The first is employers that think medicinal marijuana laws have nothing to do with their workplace, and the other is employers who fear these laws will yield rampant drug use. From my perspective, the truth is somewhere in between.”

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